31 July 2004

I've been growing a beard over the last month or so and it was looking pretty scraggly for a while. About two weeks ago I go in the back door of the local courthouse (used by lawyers, police, and employees) and walk thru the Sheriff's area on my way to the elevator leading to the courts. There's a work detail from the jail moving a bunch of furniture from the rooms into the hall (who knows why). After I pass two of the prisoners one turns to the other and ask, "Who's that?" The second, without even hesitating, replies, "He's a narc."

I finally watched the Kings of Comedy DVD I bought a while back. If you watch the deleted scenes D.L. Hughley talks what it's like to visit someone in jail.

Last week I left my office door open as I went across the hall to visit the WC. When I came back the psychiatrist who has the office a the bottom of the stairs had just walked in. She looks up at my medals and asks if I was really in military intelligence. Then she looks at my W&L Law diploma between the portraits of Washington and Lee. Next she looks at the statue I have sitting in top of my file cabinet, gets a strange look on her face, and asks about the guy standing on a gargoyle. I explain that it's St. Michael defeating the Devil and she sort of dismisses it. She looks at the wall behind my desk and asks "What are those?" I explain that they are war hammers and that they are kind of a play on my name. She takes a final look around the office: "This office is just so . . . Male."

I'm talking to a fellow Defense attorney. He's of Italian descent and I ask him if he is a member of some Italian-American group I saw on C-Span. He tells me he gets their e-mails but won't join because he cannot go to meetings. When I ask him why not he answers: "Because if you are Italian and you go to meetings with other Italians you end up on a bunch of film over at the FBI."

I rented a car for a few days while my Saab was being brought up to spec so that it is legal to drive in Virginia. When I return the car a couple of employees are kind enough to give me a ride back to my office. Half way there one of them says "Hey, you're the guy who's representing the girl who stole our car in March." And, sure enough, I am. They're not upset; they think it's funny. This is happening to me more often. The judges know where my office is so if someone has a charge in Midlothian they will assign the case to me. Of course, the people who start turning out to be complaining witnesses are the clerks at the gas station I use, the employees at the rental agency, the girl who cuts my hair, etc. So far no one's been too upset about it which is of no little importance when the lady standing behind you with scissors realizes who you are.

I'm sitting in court last Friday talking to the prosecutor while we wait for the clerk to call all the kids accused of striking the guards with intent to injure. As a joke, he looks up the Virginian anti-terrorist statute to see if it could apply to these kids. It could. The basic test is whether the act was done to influence a government official. Fighting with a guard because they won't let you have salad could be seen as trying to get them to allow you to eat more. You'd have to read the statute broadly (and have a friendly judge) but it's definitely a charge a prosecutor could make with a straight face.

30 July 2004

Arbitrary and Capricious links to a story from Seattle where a contract public defender took it upon himself to handle 413 felony cases in 2003 and had a gross intake of $255,000 from indigent defense in 2002.

I'm not sure if the 413 refers to the number of people defended or the actual number of felony charges (many defendants have multiple charges). Still, let's put that in perspective:

Virginia pays $507 per felony ($112 for the prelim and $395 for the trial). For serious felonies (possible 20+ years) Virginia pays $1,208 ($112 for the prelim and $1096 for the trial). Most courts I work in have terms of court which are two months long and each term I have - at the outside - 10 people whose felony charges are handled in circuit court and maybe 15 more for whom I'm able to take care of the case in the district court;1 if I wrap something up in district court the felony only pays $395 because it was reduced to a misdemeanor and there was no prelim. Let's assume an average of two charges per Defendant. That means each term I'm defending 25 people with 50 charges. Over a year that's 150 people with 300 charges. Assuming that 20% of those which went to circuit court were serious felonies (which are never settled in district court) I think I'd gross about $74,000 in a year. I'd have to do over three times the amount of business in order to get near what this guy took in: 450 people with 900 felony charges.

I could do that. I'd just have to give up little things like sleep, sanity, etc.

29 July 2004

Sometimes my feeble attempts at humor do not amuse and corrections are called for. JH, who knows the judge in the McNair case mentioned here, writes to tell me that my comment was unfair:

Your statement (July 28, 2004) that "In Tennessee weaving within a lane is not sufficient to stop a car on suspicion of DUI. At least not if your name is McNair", however, represents an unwarranted cheap shot at a conscientious trial judge. Judge Cheryl Blackburn's impulses are those of the former career prosecutor that she is, but her integrity is beyond reproach.

The implication that Mr. McNair received special treatment is simply false. In Tennessee, weaving within a single lane of traffic is insufficient to support a stop if your name is Guy Binette, see, 33 S.W.2d 215 (Tenn. 2000), nor even if your name is Gonzala Moran Garcia and more than 40 lbs. of methamphetamine is seized from your vehicle. See, 123 S.W.3d 335 (Tenn. 2003).

Chief Judge Wilkins was the first head of the US Sentencing Commission (see page 7 of this pdf) and thus forever linked to it. Does anyone know if he has recused himself from the 02 August 2004 4th Circuit en banc argument concerning the application of Blakely?

[addendum] I sent this question out to Blakely Blog and Sentencing Law & Policy and was referred to United States v. Glick, 946 F.2d 335 (4th Cir., 1991) and Buford v. United States, 121 S.Ct. 1276, 532 U.S. 59, 532 U.S. 59, 149 L.Ed.2d 197 (2001). In Glick Chief Judge Wilkins affirms his ability to pass judgement on the proper application of the guidelines even though he was then sitting on the Sentencing Commission. Buford is an example of Justice Breyer passing judgement on the proper application of the guidelines despite being an original member of the Commission.

However, I find this language in Glick intriguing:

In an earlier case involving the appeal of a sentence, Chief Judge Stephen G. Breyer, United States Court of Appeals for the First Circuit, and former member of the Sentencing Commission, sua sponte raised the question whether he should disqualify himself from hearing that appeal. United States v. Wright,873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., writing separately). Judge Breyer, who was extensively involved in the drafting and promulgation of the guidelines and policy statements that applied to the sentence in question, concluded that it would be proper for him to continue to participate in appeals in " typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves." Id. at 447. I agree.

Emphasis added.

I really cannot think of a more serious legal challenge to the guidelines themselves than the issues raised by Blakely (short of rearguing Mistretta). Should the Supreme Court decide that upward departures are not severable and that sentencing juries are not allowed the Court may have to strike down the guidelines in their entirety.

So I guess my question now broadens. Should both Wilkins and (later) Breyer recuse themselves under the standard Breyer set out and Wilkins adopted?

28 July 2004

"Doesn't it wear on you to make good arguments and have them rejected by judges who don't want to rock the boat?"

Well, to begin with I must say that with the possible exception of DUI law I cannot say that I've seen judges afraid "to rock the boat."1 Most judges are trying to do justice. I find that if I make solid, rational arguments before them (which I make citing case law with the cases in a file in front of me) that after a while they start to listen. They often do not agree but they listen because they realize there is a rational basis for your argument. Heck, after a while even some of the prosecutors will listen to you if you've been making good solid arguments.

Of course, there will always be Judge Smith in the city of Whatsitsname who's been sitting on the bench for well-nigh unto 30 years and doesn't want to hear you tell him that his understanding of the law is wrong (even when it most definitely is). I'd like to tell you that the appellate courts are there to fix this but I'd be lying. The appellate courts will reign in the worst of the worst but if the matter is close the deference given to the trial judge will beat you every time. A competent trial judge who does not want to be reversed knows better than to give the Defendant much of anything to work with. He won't explain why he's overruling your motion or making a particular finding; he doesn't have to. Then the appellate courts can pick thru the record and find the facts and theory most favorable to his finding and construct a defense of it. This is why those judges who explain their decision making process on the record are the ones who deserve our greatest respect because they are willing to stand by their decisions and not game the system.

Anyway, to get back on point, there's not much you can do about Judge Smith. You fight the good fight, develop a shell around your heart which keeps most things from bothering you too much, and bitch and whine like Hell to another Defense attorney after the trial about the absolutely insane decision that hang-em-high Smith came to today. Then the next day you have a trial in front of a different judge in a different court and you realize how good it is to practice in most courts where a judge will at least listen to your arguments.2

In the end I guess it all breaks down to self respect. If I have a serious issue but know that Judge Smith is going to ignore everything I say and rule the way he has on the last 25 cases of the same charge, I could slack. But then I'd be scum. And I don't like the idea of being scum. So I try my best to always provide the best argument I can. I know that most of the time it isn't going to work but that doesn't relieve me of the responsibility.3

---------- ---------- ----------1 I have definitely gotten the feeling that some small minority of those on the bench worry about making DUI decisions which mitigate Virginia's draconian DUI laws because they will eventually have to go in front of the Legislature and explain those decisions if they want to keep their jobs. It is a flaw of having a judiciary which is a creature of the Legislature.

2 At this point I have to say a word for those out there who are PD's and get assigned rotations so that they are stuck in front of Judge Smith every day for 6 months. Or worse, they work in a county where Smith is the only judge. These people are yeomen and deserve our respect and/or pity.

3 Before anybody thinks I am trying to sound noble here let me say that nothing could be further from the truth. I just like to be able to wake up in the morning with the least guilt possible in my soul.

Not being a big fan of the ABA, I'm not sure how I feel about that. Still, I guess it is good for the school's prestige. Maybe it will be ranked back under 20 next year (I graduate and things go to Hell; maybe they should have offered me a teaching position).

Don't make this mistake in Virginia folks. Weaving within the lane is plenty enough to pull you over here. And God help you if you commit the ultimate evil of having an air freshener hanging from your rear view mirror - you can be stopped any time the police decide to shake you down.

27 July 2004

Each entry is under the Latin name for that day. So now you can never say you learned nothing from reading this blog. As to whether you learned anything useful? I make no claims and disavow any warranties explicit or implicit.

Monday: In the morning I go off to court for a malicious wounding case. My client has not been in contact with me for a couple months which is always a little disconcerting when the charge carries a penalty of 5-20 years. When my client pleads not guilty the lack of communication causes some problems because the judge asks him a series of questions and one is whether he has any witnesses he wants in court. He does but never was able to get to my office to give me information to subpoena them and the judge just isn’t having any of that.

So we go forward with the trial. The prosecutor’s first witness is the victim. There is no doubt that my client got mad at something the victim said, pushed him and the victim’s hand went into a bonfire they were next to. Pictures show minor burns; although they look worse than they really were they show up nice and red in the picture. Over numerous objections on my part the prosecutor then introduces evidence of the other kid who jumped on the victim and started beating him with a beer bottle. I’m a little surprised it’s being put into evidence but I deal with it. By the end of the prosecution’s case I think the other kid’s actions have been discounted.

I argue three points. First, I argue that my client isn’t guilty because he didn’t “wound” the defendant. A wound in Virginia has a specific definition; caselaw has long held it to be the parting of the skin. I point out that the indictment contains the boilerplate malicious wounding language and the judge asks me about the “or otherwise injure language” found in the indictment. I point out that malicious injury is a different charge and has to be indicted in a particular manner (the manner of the injury must be included with specificity if there is no breaking of the skin). It’s kind of a ticky-tack objection and I’m just waiting for the prosecutor to move to amend the indictment to correct the deficiencies but he doesn’t. Not that the argument carried much weight with the judge. Still, since there was no amendment and the judge didn’t dismiss I have a built in ground for reversal (assuming that the Virginia Courts Appellate will follow their own precedent). Not that it would do my client much good, I think the correct remedy would be to return the case to the trial court for proceedings under a proper indictment.

Second, I argue that there was no proof of malice. Long, long, loooonnggg established caselaw in Virginia states that a blow with the hand is not enough to establish malice (I stopped tracing it backward in the mid-1800's). As well, there is more modern caselaw which states that malice is not established when someone is hit and the harm is caused by what they fell upon. The judge agrees with that argument and changes my client’s charge from malicious wounding to unlawful wounding (class 6 felony; up to 5 years in prison).

At this point, I make my final argument. I argue that in order to convict someone of unlawful wounding the statute requires conflicting findings. First, the judge must find that the wound was not done with malice. In other words, the judge must find that the wound was caused by recklessness. Nevertheless, the statute also requires that in order to convict someone of unlawful wounding the judge must find that the person had the intent to wound, injure, or kill that person. I ask that the statute be struck as a violation of the 14th Amendment due process rights of my client and that the charge be reduced to a battery. The judge grins at me and overrules the motion without even asking the prosecutor to argue the point.

After that the case is continued until the sentencing hearing.

In the afternoon I go off to a different courthouse. One of my clients has every charge the officer could think of to pile on him because he was stupid and, when he got caught shoplifting ran and scared the daylights out of the officer by pulling Halt! out during the confrontation. “I almost shot him the moment he pulled something out of his pocket. He’s lucky I used to sell that stuff so that I recognized it. Otherwise he’d be dead right now.” During the preliminary hearing I try to get the “release of noxious gas” charge dropped because Halt! is a liquid, not a gas. No luck, the judge certifies everything.

The next client is charged with felony driving as a habitual offender (mandatory year) and possession of marijuana. He’s got bigger problems in another jurisdiction so the prosecutor drops the marijuana charge (didn’t have the lab report) and reduces the felony h/o to a misdemeanor.. Client has to serve 6 months but that’s fine by him and his family as long as it keeps a felony off his record.

Wednesday: I spend the morning in traffic court. My first client is charged with driving on a suspended license and contempt of court (for not coming on his first court date). He has gotten his license and when I show that to the judge that charge gets changed to driving without a license (so that his license won’t be suspended by the conviction). The contempt charge is dismissed when Client tells the court he got his court dates mixed up.

The second client has three contempt charges (for not coming to court), one misdemeanor failure to appear (for not coming to court), and two show causes (one for not coming to court and one for not doing community service). All of this comes out of a minor in possession of alcohol charge from 3 years ago for which Client had not done his community service. If he’d come to court when he was first show caused there is almost no doubt that he’d have faced no jail time. The judge who initially sentenced him sentenced him to community service without even putting any suspended time or a suspended fine over his head. So, by dodging court for three years he has exposed himself to the possibility of a year and 30 days in jail. I get the failure to appear dismissed by the judge when I point out that my client had no notice of court for that particular date. Then the judge and I go back and forth for a little while trying to figure out the timeline for all the court dates missed. Finally the judge just decides that everything is from so far in the past that he is going to dismiss all the charges. Then the judge looks at the underlying charge and decides to dismiss it as well. The prosecutor just stands there looking kind of dumbstruck.

So I walk out of the courtroom looking like some sort of superhero because the judge took it upon himself to throw all that stuff out (even I’m not audacious enough to ask a judge to throw out that many easily proven charges). Client is ecstatic and as soon as I shake his hand and send him on his way another guy walks up and hires me on the spot. He’s only got a driving suspended charge and I handle that pretty quickly getting him some suspended jail time and a fine.

At 11 a.m. I have a bond hearing for one of my clients. Client has no place to live, no job, is a drug addict, was picked up for a second felony the day before his prelim on his first felony, has new charges in Richmond as well, and has no money to post any kind of bond. All this comes out in the hearing. Shockingly, the judge did not set a bond for Client.

In the afternoon a client has a sentencing hearing for felony leaving the scene of an accident. I’m a little nervous about this one because client went over the median, bounced off a couple cars, took off in his car, and a little further down the road was found parked drinking alcohol after the accident. Still, nobody was hurt and Client has already spent over six months in jail. The judge sentences him to 3 years with 2 ½ suspended and requires him to complete the Salvation Army rehab program.

Thursday: In the morning I am the victim of being too successful. My client is at his preliminary hearing date charged with 2 counts of forging a public document (2-10 years each), 2 counts of possession of oxycontin (up to 10 years each), and one felony failure to appear (up to 5 years). I talk to the prosecutor and all the charges are going to be dropped but the failure to appear; that charge will become a misdemeanor and carry 12 months with 6 months suspended (3 months actually to serve). Client balks. It’s not that he doesn’t expect to be imprisoned; it’s just that he wasn’t expecting it today. He just can’t go today. After a long while his girlfriend and brother talk some sense into him but he still wants to put off reporting until Monday. When I am able to arrange that he finally decides to plead and take his sentence.

At 11:00 I have two bond hearings. In the first I get a $5,000 bond for my robbery suspect. It’s low for a robbery bond but that’s because he’s overcharged. It all comes out of a fight he got into with a towtruck driver who was trying to repo his sister’s car. I’m sure I’ll write more on that on a later date. The second gets confusing so it’s held over to the 1 p.m. docket.

At 1 pm I come back and take on the bond case again. The prosecutor and I have worked out all the charges except a trespass and we take care of them. Then I move the court to set a bond on that charge because the evidence seems to point to my client’s actual innocence; Client was staying at a friend’s house overnight when the landlord and police showed up the next morning and everyone was arrested because Friend was evicted and supposed to be off the property (it appears that Client knew nothing of this). The prosecutor points out that three of the charges we had just taken care of were contempt for not having come to court and the judge sets a $1,000 bond. As I am writing this down I realize that something is going on between my client and the prosecutor. I look up and see a quizzical, bring-it-on asshole look on the prosecutor’s face. I turn to my client and he is looking forward in a totally neutral fashion. I’m still not sure what happened. I guess I’m going to have to start wearing stilts now so my clients can’t look over me and make faces at the prosecutor.

Late in the afternoon I go to Beaumont Juvenile Correctional Center to visit a couple clients. This place is where Virginia dumps the worst of the worst juvenile offenders and you can tell. I’ve been in many a jail and prison and none of them feel as much like they are two seconds from getting entirely out of control as this place does almost every time I am there. Anyway, when I get there the guard at the front searches me and then has me sit down until headcount clears. I sit for 45 minutes, watching the entire dayshift go off duty. Finally, another guard walks up and asks what I’m waiting for (the first guard having left; presumably his shift ended). I tell her that I’m waiting for headcount to clear so I can visit my clients. She gasps and informs me that they were just starting headcount. So then I wait another 30 minutes for it to clear; as soon as it does she hustles me into a room to meet my clients. My clients being extraordinary trouble makers in a group of troublemakers are brought to me in cuffs. They remain handcuffed and we have to sit where the guards can watch everything through a window. Not that the guards were watching all that attentively. After a hour or so I finish the interviews and head back home.

Friday: At 8:30 I arrive at the local courthouse. I’ve got to deal with my two general district court cases fairly quickly because at 9:30 I’m due in circuit court and I’ve a case in another county at 11:00. Of course, the officer in one of my cases is in juvenile court and won’t even be over to general district until 9:00. The prosecutor won’t do anything with the case until she talks with him. So I try to get my first case called. However, the docket is running slow and at 9:25 I get up to tell the clerk not to call my case until I finish my time in circuit court and come back downstairs. That very moment a case is completed and knowing I am on a tight time schedule she tries to do the right thing by calling my case. At this time I should ask for the case to be passed over but I figure that the case really shouldn’t take 5 minutes. After all, it’s just going to be the prosecutor dropping the drug charge and my client waiving her prelim on a felony failure to appear (nothing to have a prelim on; I know the facts because I was there the day she failed to appear, waiting for her). Of course, things go wrong right from the beginning. As soon as I tell the judge what we’re doing he informs me that there are two other charges: a driving on suspended license charge and a capias for absconding from pre-trial services. After a quick moment of discussion my client pleads guilty to the driving suspended and I point out to the judge that the capias1 wasn’t for contempt and therefore carries no penalty and need not be pled. We then spend the next ten minutes looking through statutes because the judge believes that all capiases carry the possibility of an additional jail sentence. Eventually the statutes do not support his contention; I still don’t think he believes me but he let it pass. Then I make a mostly pro forma motion to set a bond for my client. Under Virginia statutes there is a presumption that my client is not to get bond and most judges would have just cited that to me and been done with it. But no, this judge actually considers the equities and goes back and forth for a couple minutes before he decides that Client should get a $15K secure bond because her original charge had been dropped. He’s considering factors I wish a lot of other judges would but he’s killing me with all the time he’s taking. Finally it’s all done and I bolt out the back of the courtroom to the nearest stairwell in order to get to circuit court.

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1 Capias is just a court order to bring someone into custody. However, there are a number of people out there who think that each and every capias carries a contempt charge with it. They don’t.
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I finally get up to the circuit court 15 minutes late. The deputy at the back jokingly scolds me for not getting to court on time but the judge is magnanimous when I apologize: “Mr. Lammers, these things happen to everyone once in a while.” So then I sit thru pre-trials and pickup a couple show causes which both look like train wrecks (most show causes do). One guy is being show caused because he has been charged with felonies in 4 other jurisdictions.

After finishing pre-trials in circuit court I come back downstairs for my final district court case. Client is a kid who got so drunk he fell asleep in the middle of a road. Police find him and have to work really hard to wake him. When they finally do the kid gets belligerent, refuses to believe that these people standing in the county’s distinctive green uniforms are police, and “obstructs justice.” In the process of obstructing justice his head gets a nice big gas over his left eye and the eye itself is swollen as if a blow had landed. He even went to the hospital that night. Nevertheless, there is going to be no trial; Client is, on his own accord, pleading guilty. Once the officer arrived we came to a pretty quick resolution: Client pays a fine and gets 30 days suspended time. So we do that and after a few comforting words to Client’s parents I jump in my car and drive [in a safe and sane manner, obeying all the laws and speed limits] to get to the courthouse the next county over.

I get there five minutes late but it really doesn’t matter. Court is running far later than I am. It turns out I’ve got one more case on the docket than I thought I did but I prepped it up a while back so I’m ready for it. In the end all my client does is waive his preliminary hearing for eluding a police officer and felony driving when Virginia told you not to charges. I tried to talk the prosecutor into dropping one of the charges but when the deputy told him about Client driving 85 mph on dirt roads and 120+ on paved the prosecutor decides he’s not going to cut my guy a break. So Client’s charges get certified to the grand jury.

Finally, at the end of the docket, the case I came for is called. Out of a group of 20+ kids at Beaumont who were involved in a riot 5 are facing charges of assaulting a juvenile corrections employee with the intent to injure (up to 10 years prison) and I am representing one of them. The only problem is that one of the lawyers isn’t there. So the prosecutor asks the judge to go forward on 4 and schedule the remaining one for another date along with a show cause for the attorney. At this point the kid without a lawyer speaks up and says that he wants to represent himself. The judge asks the prosecutor his position on it and he says it’s the kid’s right to do so. Now that varies from my understanding of the law2 but he’s not my client so it’s not my place to speak up. The judge asks the kid a couple vague questions like “Do you understand what you are charged with?” - “Yes.” Then she sits there for a couple minutes mulling it over. Meanwhile, the prosecutor asks me what I think and I ask if the kid’s ever even read the statute. Then the prosecutor starts talking with another attorney about the case and she tells him a couple concerns she has. At this point the judge starts fussing at the Defense attorneys for raising objections without standing so we shut up. Finally, she decides that the kid can represent himself. So then the preliminary hearing begins.

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2 My understanding is that once someone has an attorney - especially a court appointed attorney which he had to ask for - he has waived his right to represent himself and it is within the sound discretion of the court to decide if he has the ability and resources necessary to represent himself.
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The prelim isn’t all that complicated.. The kids were all at mess and the guards got upset because they were taking too much salad. A confrontation ensued and the kids were told they were going to be punished. At this point one kid gets up, walks around, and finally throws a table over. When that happens everybody goes nuts and each guard ends up in a fight with numerous kids. Most of the evidence doesn’t involve my kid directly so I don’t ask any questions until the last guard who testifies that my client hit him in the nose. Just as the guard starts to testify the prosecutor looks up at my tape recorder (which is over there so it can actually pick up the testimony) and tells me it is not working. Throughout the hearing I see him reaching up and tapping the recorder to get it working again. At the end of the hearing I pick it back up and somehow the voice activation switch had been hit so it would only record when there was noise. I haven’t listened to the recording yet but I expect it will go something like this:

At the end of the hearing the first couple lawyers made pretty strong arguments for the dismissal of their clients’ case. The prosecutor makes a it very clear to the judge that no matter what she does he’s going to take these cases to the grand jury. While there are serious problems in the prosecution of my client’s case it does pass the probable cause standard so I submit the case rather than telling the prosecutor the flaws.3 In the end, two of the cases should have been dismissed (three if the kid representing himself had known to object to hearsay). Nevertheless, the judge certifies them all

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3 Unfortunately, as I know he reads this blog, I am unable to tell you good people what the flaws are either.
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After all that ends I spend the early afternoon trying to get some subpoenas expedited. They’re late because of a misunderstanding between me and a client as to what his plea is going to be. The clerk isn’t exactly thrilled with me but agrees to get them out to the sheriff today. Now I can only pray that they are served in time.

In the late afternoon I have two appointments and by some miracle they both show up. I think this fulfills my quota of clients who actually show up for their appointments for at least a month.

26 July 2004

BTW: You'll notice that my Criminal Law list is starting to get a number of Defense oriented blogs. This is not because I'm avoiding prosecution blogs. I've just not seen many. If you have one out there be sure to let me know.

There is also a concern that law in this area will be developed in response to a lot of poorly drafted, ill-reasoned motions from pro se litigants in prison (jail house lawyers). Most likely those fears are correct. Desperate (or bored) men in prison will probably be the source of 95% of these motions and the courts will probably begin to view them with the same jaded eye as is used in viewing habeus petitions.

Subjects: (1) Do the police have to determine that the persons they have detained are the ones they are looking for before they search the vehicle the people were driving in?

No. The fact that the persons detained were not the people the police were looking for is irrelevant. Officer safety conquers all and the officers can search the car to check for other dangerous occupants. But wait, that doesn't exactly cover the officers' actions in searching the console and glove compartment. Maybe they suspected the involvement of the dreaded Lilliputian mafia.1 Naawww. Gotta be a better explanation than that. Got it! The police are worried that if they let these people go - who are not even wanted and are not the people the police are looking for - the guys would have access to any weapons which might be in the car.

[comment] Yeah, that's a great bit of reasoning. It ranks right up there with Anselm's best. Officers will (and should) have officer safety concerns each and every time they stop a car. By this case's reasoning, if an officer pulls you out of the car but does not attempt to ascertain who you are that officer can search your car because we could all be dangerous felons. And it's so hard to look at ID's and wait those "5-15 minutes" for a criminal record. 2

----------------------------1 Yes, I know. There is no such thing as the Lilliputian mafia. They are just family members, acquaintances, and businessmen meeting and interacting at social clubs for the purpose of camaraderie and friendship. The fact that some rogue elements in this community have, in the past, undertaken illegal activities should not lead us to portray all of these hardworking businessmen as criminals.

2 Funny. I've stood in several prosecutor's offices and watched these records get pulled up. It never seems to take more than a minute or so. But I guess law enforcement is still using those trusty old Apple IIe's with 300 baud modems.----------------------------

(2) Can people handcuffed, locked in the back of a police car, and surrounded by police be a threat to get back to their car and get any weapons therein?

Yes. If the people have no warrants and are not known to have broken any laws the police have to let them go. Thereafter, these citizens against whom the police have no evidence would be allowed back in their car. These citizens against whom the police have no evidence then would have access to possible weapons which the officers have no proof exist.

[comment] Innocent people and imagined weapons. Always a good basis for a search. Who needs the 4th Amendment anyway?

(3) Was there sufficient indicia that the two guys in this case were dangerous?

"Admittedly, the suspicion of danger dissipated after the officers discovered that the two suspects were [not the person they were looking for]. But by that time the search had already been completed, and was not retroactively invalidated by the officers' subsequent discovery."

[comment] Translation: No, but we're going to let the officers get away with this anyway because they didn't investigate properly.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~[overall comment] This is a Thornton search gone bad. The police just assumed that they had at least one of the guys they were after.3 They didn't.

Not ascertaining who these guys were and if there was any reason to arrest or hold them should have invalidated the search. Since no bad act or warrant was attributed to either at the time there was nothing - absolutely nothing - upon which to justify the search for an imagined weapon.

This is a case of 20/20 hindsight and hard facts making bad law. We all know that Holmes is a bad guy and that he was the guy the police should have been looking for. Law enforcement screwed up and our rights take a beating as the court covers for it rather than stepping up.

-----------------------------3 Although even that premise seems a little dicey. Judge Luttig doth protest too much in his explanation of the facts. However, I do not have the transcript so I must, perforce, accept his explanation at face value.-----------------------------

Other than "because we can" what explanation is there for that behavior? If the company is illegally selling paperclips to Botswana the raid has already tipped the executives off and they're gonna take that long awaited trip to whatever country doesn't extradite. As well, the Botswanian agents now know you're on to them and are heading back to the mother country for that long needed visit with gramama. Keeping the affidavit under seal only serves to hide information from everybody else.

24 July 2004

I really haven't followed the case all that closely so I cannot comment on it as a whole. However, when the prosecutor approves a raid of the office of a private detective working for the defense attorney and then claims he didn't know of the relationship it just doesn't hold water.

There has always been and will always be a two tiered system. Judges act differently in celebrity cases for at least two reasons. First, because of high interest the release of certain information can and will affect the jury pool. Second, and primarily, because the celebrity usually has tons of money her options are far greater. If my local street dealer had 500K to throw at a defense I could make life a living hell for the prosecutor. New motions could be ground out and presented day after day by associates covering every possible legal issue. Private investigators could look into every aspect of the arrest, the background of every single officer involved, the patterns and behaviors typical of local prosecutions, etc. Research of the judge's proclivities could be done. Mock juries could be held to see how best to attack the prosecutor's case. A grand old time would be had by all.

Of course, I'll not actually be able to run a Defense like that until I am hired by Kobe or Martha. I'm waiting, but they just don't seem to realize that they need to hire me.

23 July 2004

A couple days ago Will Baude (of Crescat Sententia fame) authored an article over at TNR in which he posited the reason that Blakely has caught fire is because of the ideological mix in the lower courts:

[comment] I think the truth is somewhere in the middle of all of that. Orin is right that the implimentation of Blakely after the courts had rejected claim after claim rising out of Apprendi et al. is a triumph of legal reasoning. After Blakely even the most obtuse of judges could not ignore the logic of Apprendi. Everyone, no matter their philosophical bent, knew that upward departures based on things like unproven "relevant conduct" etc. were no longer allowed. The question then became what to do.

It's at this point that ideology came into play. Some judges showed admirable restraint, attempting to interpret the decision narrowly and either severed the upward departures or required a sentencing jury. However, a number of judges have stepped beyond this. Some have ruled that the guidelines are, in their entirety, now merely advisory. You can come to this conclusion if you don't believe the guidelines severable or the courts to have the power to empanel sentencing juries. Still, too many courts seem just a little too eager to stretch past the other two possibilities in order to reach this conclusion. Mind you, I find the federal guidelines repugnant and would prefer this solution myself; I just don't think it is the most valid of options (see here).

The worst of the worst have been those courts which impute upon the prosecution a "right" to the upward departures (phrased as fairness). Following this line of reasoning when sentencing does not have upward departures the guidelines are constitutional. However, when the sentence would have upward departures it is unfair to deny those to the prosecution. Therefore, in those applications only the guidelines are unseverable and unconstitutional. Thus the upward barrier is removed and the judge is allowed to sentence using the guidelines - with the upward departure included - as a "recommendation."

Personally, I don't break this down as liberal/conservative. I think a lot of conservative judges can (and probably will) come to one of the first three conclusions. The fourth is nothing more than a pro-prosecution position. In fact, it would be pretty easy to characterize that as legislating from the bench; a total rewrite of the law.

I figure the S.Ct. is going to have to hear this in the next term. It will be interesting to see which theory it adopts.

22 July 2004

A fellow Defense attorney clued me in to the fact that he had a very interesting case. Having finished my cases I go up to the Circuit Court to watch the trial. The charge is striking a police officer, a class 6 felony carrying up to 5 years in prison and a mandatory 6 months which the judge cannot suspend.

The trial’s start is delayed because the deputies cannot get 20 people to report to court (the bare minimum which must report for a jury trial). When it becomes obvious that 20 people are not going to report the Defendant, who had already spent several months in jail waiting for his trial date, waives the jury rather than wait another month or two for the next possible trial date.

Finally, everyone is ready. The prosecutor is sitting in his seat with the 200 lb., solid muscle officer sitting next to him. The judge comes out and takes his seat. Finally, the Defendant is brought in. I say brought in because he was wheeled into the courtroom in a wheelchair. The Defendant weighs maybe 100 lbs. soaking wet, suffers from cerebral palsy, and has almost no muscle strength.

As the trial progresses the story unfolds something like this: Police respond to a domestic disturbance call. When they arrive they find Defendant on a bed in the apartment. They search Defendant and then go to talk to the woman. While the training officer is talking to her the junior officer is watching Defendant. Defendant picks up his cigarettes and sticks them in his pocket. The officer makes him take them back out because Defendant had already been searched. At this point Defendant takes a pen out of his pants and says something to the effect of “I’ll kill you.” The officer is on the other side of the room and realizes that the guy can barely lift the pen much less make a lunge at him so he just tells Defendant to put it down. Defendant does.

Then the officers decide they must arrest the guy. At first they try to get him to walk out to the car but he only make it a few feet before his muscles give out. Then they decide to carry him. They handcuff his hands in front of him. The senior officer grabs his feet while the junior officer grabs him under the arms. They get a few feet outside the door when Defendant’s hand jerked up and hit the officer straight in the neck. From that point testimony went something like this:

Officer: “At that point I put him on the ground. While on the ground he was flailing about so then I capstunned him. He continued to move around and his hand latched onto a rake handle so I put my foot in the center of his back and told him I didn’t think that was a good idea.”

Cross examination:

D. Attorney: “When you put him down did you use any force?

Officer: “Yes, a little.”

Judge: “Do you mean to say you dropped him?”

Officer: “No sir, I put him down.”

At the end of the trial it is obvious that the Defendant struck the officer. The judge looks down from his bench and asks the prosecutor, “Don’t you think he got punished when they capstunned while he was lying on the ground?” Prosecutor: “(pause) Maybe so sir but we still ask you to convict him of the felony.” Judge: “I’ll convict him but all you’re getting is misdemeanor assault.”

Up to this point everyone in the courtroom is wondering why the prosecutor had gone forward on this case. While it’s obvious a battery took place it’s also kind of embarrassing to pursue a case wherein a young, strapping police officer claims to have been set upon by an older wheelchair bound cripple. Then, during sentencing arguments the prosecutor introduces the Defendant’s prior record. It has 6 assault & batteries, two of which are against police officers. It appears that this guy had a pattern of doing this sort of thing and then hiding behind his condition. The judge looked a little surprised and sentenced the man to 12 months on the misdemeanor.

I agree with the judge. I think that the purchase of the item for the girls to use in smoking was an act in furthering of use of the marijuana. In actuality, it was an act in the furtherance of the ending of the possession of marijuana by encouraging its destruction. So the guy was in the right; he was trying to assist the young ladies in destroying and therefore ending their possession of an illegal substance.

Yep, he was just a saint at heart - Pure as the windblown snow - Innocent as a newborn babe - An all around gentleman trying to extract those poor unenlightened ladies from their plight - A swell guy.

21 July 2004

I just found out (via e-mail from ____) that Professor Bowman was a visiting faculty member at my law school (Washington & Lee) in the 94/95 school year, teaching CrimLaw and CrimPro. Then, in a gigantic downward step, he left and went to the Sentencing Commission. ;-)

Watching a trial today another Defense attorney and I were arguing over whether the Defendant was guilty as a principal in the 2d degree of possession of marijuana. I thought I'd put it up here for ya'll to see (and perhaps comment upon).

Facts: A street drugs officer is sitting in a parking lot when a car with two women passengers and one male driver passes by. As the car passes the officer, the front female passenger takes a hit off of a plastic bottle. The officer pulls the car over and, as he walks to the car, smells marijuana. He arrests all in the car. Upon a search, all the marijuana and paraphernalia is found on the female. The officer testifies that the male admitted to smoking marijuana earlier in the day and that he admitted he bought the bottle so that "they" could smoke the marijuana.

This was interpreted (under the beyond a reasonable doubt standard) as "the guy bought the bottle so the girls could smoke their marijuana."

Law: It is well settled in Virginia that possession cannot be proven by mere proximity. So it was pretty clear that the guy wasn't a principal in the first degree. This left principal in the 2d degree (which carries the same penalty and need not be specifically alleged). Groot defines principal in the 2d as such:

To constitute a principal in the second degree one must be guilty of some overt act, or he must share the criminal intent of the party who commits the crime. When the alleged accomplice is actually present and performs overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to have the crime proceed and has demonstrated that he shares the criminal intent of the prepretrator.

Note that mere presence when the crime occurs is not enough.

When the Defense attorney got up I turned to the other lawyer and asked why would anybody ask questions at that point because the case was already won. The other attorney disagreed and asserted that there was enough evidence for a conviction.

I'll post the outcome tomorrow. In the meantime opinions and/or analysis are welcome.

Stop the Bleating points to an article which shows how bad things can be for a Defendant when the judge is bad. This is downright scary. [addendum] No, I don't blame the prosecutor for being somewhat myopic. In an adversarial process we all tend to get that way sometimes. But the judge is supposed to ensure that the whole picture is presented.

May It Please the Court points to a group of guys getting charged with escape because they made a beer run - from the jail.

20 July 2004

The Bowman proposal disturbs me. It's all Feeney and no check on a judge who would sentence disproportionately high. The abuse of discretion proposal for anything over the bottom by 25% cannot have any teeth or it would violate Blakely itself.

I'm interested to see how that argument is dealt with. As I remember it (harkening back to law school) in federal interpretation the State is viewed as one body rather than a series of subordinate entities (counties, townships, cities). As well, the prosecutor (the representative of truth, justice, and all that is ma'at in the universe) would seem to be required to adopt a specific theory as to reality.

Now, I understand that in a particular case the prosecutor's theory might have to change a couple times pre-trial or mid-trial because of new evidence. However, trying one person on a particular theory and another on a theory the prosecutor knows conflicts with the first does not come across as just.

Not that I expect the result to be overruled; I just want to see how twisted the reasoning gets to uphold the decision.

I respectfully dissent points to difficulties that are coming from the fact that one lawyer grossed more than the chief justice of North Carloina. Of course, as IRD points out, no one bothers to subtract the lawyer's rent, secretary, double taxes, office materials, etc. out of the amount. Somehow I don't think the chief justice has to pay those expenses.

19 July 2004

Hitt v. Commonwealth - Subject: Can a bedroom within a house constitute a "dwelling house" for the purpose of the burglary statute?

Facts: Defendant had permission to be in a house. The bedroom was locked and the Defendant broke into it.

"The legislature intended to preserve the crime of common law burglary as an offense against habitation." The place of habitation is the house as a whole, not a bedroom in that house. The Legislature has chosen at times to extend the traditional common law notion of "dwelling house," but it has not extended it to encompass a room within a house.

Subject: Can a conspiracy be found in a situation wherein the Defendant could not be convicted of the completed act?

To convict of conspiracy . . . the government is only required to prove an agreement to violate the law, an overt act, and willingness to participate in the conspiracy. Proof of a conspiracy does not require proof that the object of the conspiracy was achieved or could have been achieved, only that the parties agreed to achieve it.

18 July 2004

I don't expect to be able to post much today. I have a kid going on trial for malicious wounding tomorrow (5-20 years). He's not really guilty of the charge but I cannot explain why because I know the prosecutors from that jurisdiction read this blog (Hi guys).

Anyway, today I will be mired in trial prep. Ya'll have a good day now.

17 July 2004

There is no way I can keep up with the frantic pace of all the Blakely happenings and so I have left that generally to SL&P and Blakely Blog. Still, I have been watching and here are the positions as I see them.

Blakely Renders Only Upward Departures Unconstitutional

Sever the Unconstitutional Portion: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Nevertheless, the guidelines remain constitutional. Therefore, the guidelines must be applied with those upward departures shorn away.

[comment] This seems to me to be the narrowest and most accurate reading of Blakely. Sure, in the short run it causes some problems as people who were not properly indicted get lesser sentences. But when the prosecutors very quickly adapt the situation will settle back down to pretty much where it was before with but few things really changed (like punishing people for testifying at their own trial).

Blakely Renders the Guidelines Unconstitutional as a Whole

Empanel a Jury: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the judge should impanel a sentencing jury or set up a bifurcated trial

[comment] This strikes me as an eminently viable solution. The only problem is that I haven't seen anyone explain where the courts are authorized to implement it.

Discretionary Guidelines: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the guidelines as a whole are out. They should still be worked up and considered but they are no longer determinative, merely advisory.

[comment] If this is viewed as going back to entirely indeterminate sentencing it seems valid if the unseverability is correct. However, it strikes me as going a step too far. I've seen no valid reason for not severing the offending portions of the guidelines and therefore throwing them out entirely. Both of the solutions above work far better.

Unsupportable Positions

Schizophrenia: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Therefore, whenever the guidelines would be moved upward by one of these factors they are unconstitutional and the guidelines are entirely out and sentencing is indeterminate using the guidelines as a suggestion. However, when there is no Bakely issue the guidelines magically transform back to constitutionality and are their same old determinative selves.

[comment] An obviously unsupportable position. A statute, as viewed through a constitutional lens, is not a light switch to be turned on and off so that it is applied only when the application would be constitutional. If the guidelines are in toto unconstitutional and therefore dimissed they are in toto unconstitutional and therefore and therefore dismissed. A person who is effected in an unconstitutional manner may be required in order to challenge the guidelines; nevertheless, that does not mean they survive once declared unconstitutional.

The government's attempt to preserve its power at all costs by advocating this position is understandable, though not laudable. The adoption of this position by a number of judges has just been bewildering.

Head in the Sand: The Supreme Court expressly passed no judgement on the federal guidelines and therefore they remain constitutional.

[comment] Gotta say, I was really, really surprised that an appellate court would adopt this position. The 5th Circuit did; I cannot explain it.

---------------------------------------------------------

As an aside, I am reading of lowered sentences in blawgs and news articles but I am also hearing of greater punishments from certain Defense oriented mail lists. Those involved in federal work are still somewhat in chaos from this.

You'll also remember that two posts back I asserted that federal criminal sentencing does not "pierce the consciousness" of people not involved in the federal system. I can pretty much confirm that none of my clients have a clue about what's currently going on in the federal system. Clients are on it the instant something big happens in the Commonwealth's courts or the Legislature and rumors abound (every year we Defense attorneys spend a fair bit of time explaining to clients that certain bills didn't pass the Legislature and yes, they will still have to serve 85% of their sentences). There's been nary a peep about Blakely and I would have expected some wild rumor by now. Heck, even most of the attorneys do not know about Blakely. Since few have a significant federal practice and Blakely has no application in Virginia they just don't have a reason to pay attention to the case.

Actually, you make a good case for real punishment for the small users -- as long as the demand is there, new dealers like you say will step in to fill the demand. How do you deter the demand?

Well, the answer would be to impose massive penalties for possession as well as dealing. Perhaps someone with a first time possession charge could be ordered into a program like drug court but failure would be punished just as massively or more.

It's a solution which is deceptively simple yet has great implications and is not politically viable.

(1) It would cause a "lost generation." In short order, a large number of young males would suddenly be removed from our society for a long period of time. Assuming the patterns I see among my clients hold true, a large majority of these young men would be Black.

(2) Costs of maintaining all those people in prison would be a heavy burden on governmental budgets.

(3) The sentences would have to be so large that they would be draconian and contradict our sense of what an appropriate sentence should be. I'm talking residue=2 years, 1 hit=5 years, 2+ hits weight=10 years, 2d conviction=15 years, and possession with intent 15 years (30 years for a second offense). Do I think that any of those sentences are proportionate, fair, and just? No. But that would be the point.

(4) As dealers and users realize that they are facing massive sentences the level of violence would rise (probably exponentially). Currently, dealers/users know that carrying a gun with drugs can lead to large penalties and therefore, a surprising number do not. With these kind of sentences they are not likely to worry much about the gun charge and much more likely to fight back when the police try to take them.

(5) It would reach into the middle class (you know, the voters). I don't know what percentage of middle and upper middle class kids and young adults mess around with drugs experimentally or are social users but I know they are out there. I suspect the number is high enough that when they started getting busted and sent away for long periods of time the disproportionate sentences would be noticed and cause an uproar. After all, it might be okay to send "Reb" and "Biggy-S" (you know, "those people") off to prison for 10 years but not Robert Fensworth IV, college junior, pre-law, elder son of a hardworking upper-middle class family which has all the right connections.

Of course, at least at first there would be the normal discretionary enforcement concentrating on "those people."1 However, after a couple of years "those people" are going to start getting scarce and law-enforcement is going to have to hunt somewhere (or start drawing down force levels and that ain't likely).

------------------------------

Why would this work? Because in a very short order it would decimate both the chain of supply and provide a strong disincentive for anyone using or beginning to use. Everyone would be screaming bloody murder about how wrong it is that Joe is going to prison for 10 years and how that is absolutely an unfair punishment level (because it is; this doesn't work if the punishment is proportionate). As I defended Joe for the 4th time as a court appointed client (yes frequent fliers are a rule rather than an exception) on a personal level in defending this poor guy who never really hurt anyone, I'd be just as upset. In order for this to work at a macro level it would have to be unjust over and over and over again at the micro level.

Personally, I don't think this can ever be the system put in place. The economic and social impact would be too much. The strength of will it would take to lock up (and pay for) an even greater portion of our population than we currently do for much longer than we currently do just isn't there. As well, imagine the backlash from everybody under the sun. Not only the usual suspects (ACLU, NACDL, NAACP, etc.) would step forward to defend people's rights not to be trampled under a system dedicated to sacrificing them in order to reach a better world; there would most likely be a backlash among the voters as people they knew started going to prison for loooonnngg periods of time (the ends justifies the means not being a popular sentiment when it applies to you and yours).

So, we revert to doing things at a micro level. Programs, like drug court, are put in place to help the individual get out of the cycle - and they seem to lower the recidivism rate somewhat. The judge (in the article noted in the last post) is probably right in that lesser or non-jail sentences for small time offenders accomplish more than sending them away. People who have not acclimatized to jail fear it far more than those who have gotten used to it and act accordingly. As well, I truly believe that less jail time would stop the cross-pollination which allows many a small dealer to become a mid-level dealer (or more); however, I must admit that I think the criminal system would evolve other avenues were this one denied. If you cannot, or will not, make the sacrifices which would be needed to accomplish large scale change you must work within the current system to minimize the harm to society at large by diverting as many as possible away from the path they would otherwise end up on.

--------------------

1 Don't believe discretionary enforcement occurs? One example often cited is the difference between the punishment for powder and crack cocaine in the federal system. However, I prefer even more down to earth examples. Go check and see where your local police do their DUI checkpoints. I'd bet dollars to doughnuts that a great majority of them don't take place on the one road leading into "Charlesworth on the River, A Gated Community." They take place at roads leading to "Roadrunner Trailer Park." Examples of this sort abound.

15 July 2004

Incapacitation [incarceration] works very well during the period of incapacitation. Measured by impact on recidivism (after release), though, anything longer than six months is probably counterproductive. Shock incarceration, shock probation, scared straight, D.A.R.E., and boot camp programs do not work and may well do more harm than good.
. . . .
One shortcoming of the movement towards increased incarceration through reduced judicial discretion is that incapacitation is only effective until the defendant is returned to the community. There are other problems, of course: the broad brush of these measures sweeps into prison offenders whose incarceration is not only not necessary for public safety, but may increase the danger they represent to public safety once they are released. Moreover, there are unintended collateral consequences and enormous public expenditures that follow from our ongoing experiment with "mass incarceration."

I think this is probably correct in the modern social environment but does not reflect what would happen if sentences were uniformly massive. However, unless something significant changes sentences will never be uniformly massive.

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Example: Drug Distribution

While I've never engaged in any kind of study (and doubt an accurate one could be done), from where I sit as a Defense attorney the social-work environment within which your basic street dealer exists is amazingly redundant. When I first started practicing I was surprised to find that no matter how many times police rounded up the dealers in a particular area it had absolutely no effect on the ability of my clients to get drugs from exactly the same place. As my practice progressed into the defense of those dealing I began to glean the why of this.

At least in Virginia, those who deal/use drugs tend to form loose-knit, somewhat overlapping groups. The trick is to stay connected closely enough that someone can take a dealer's place if he is removed (usually by incarceration) but not to become affiliated closely enough that the police can get everyone as a group. In the city this seems to be done by groups of "friends" who are usually located close enough to support one another. Sometimes this rises to the level of "gangs" but that is a dangerous development because once the association rises to that level it is like painting a bullseye on those participating. In rural areas where everyone knows everyone the grouping seems to devolve on certain families. Generally, everybody in the county knows that the Smiths are dealers but the Smiths know every single deputy by name (the young men were on the same high school football team even). Snitches and leads are harder to develop because of the level of interpersonal knowledge among locals and the instant distrust of the sudden appearance of a stranger; after all, if a white "phone company van" is out on a country road where only the Smiths live and there ain't any phone problems they will probably notice. As well, the local sheriff seldom has the money or manpower to put together a team to break the family.

These groups are an important part of the business because attrition and reacquisition of members is constant. There is always someone going to jail or prison. When that person goes others step in to keep the flow steady (and quite often to take care of the other guy's girlfriend, kid, mother, etc.). There is also always someone getting out of prison needing people to come back to who will get him back on his feet; the guy coming out of jail also often brings new sources and contacts which he has made inside. The fact that multiple groups overlap somewhat is also important. Sometimes the police are either lucky or put in tons of hard work and roll up most of a particular grouping. Then friends who are peripherally attached to the group step in with their group connections to continue the business; assuming that the first group isn't released en masse when members of that group come out they don't really have any massive loyalty to a particular group and usually reintegrate successfully.

Now, the dealers, their families, et al. engage in a cost benefit analysis (though they wouldn't phrase it that way). The expectation is that people will get caught every so often and cycle through terms of incarceration.1 The typical 6 or 8 months really has little or no effect on the system at all. If a sentence is 2 years or less it is annoying but can be handled. Above two years things start to get painful and five or more years is definitely a serious disruption. The type of time faced in federal court is devastating because it takes the dealer entirely out of the system.

Why then don't the federal sentences act as a major deterrent? Because they don't pierce the consciousness of the local street dealer and his family. The dealers know well what kind of time they will probably face in the courts of the Commonwealth and their activities take that into consideration. Their family and friends are constantly in and out of Virginia's courts for one matter or another. On the other hand, most of them have no clue where the federal courthouse is and no comprehension of the penalties they can face there. When these people are picked up, the first conversation wherein you explain federal sentencing to them is always painful. The feds just aren't active enough to make an impression and therefore aren't factored in. And why would they think that one time out of fifty the feds were going to be the ones involved in basic street sweeps, arresting intrastate dealers? I certainly didn't before these mid to low level dealers started getting assigned to me.

So, if government is serious about wanting to make an impact either the Commonwealth would have to impose draconian drug sentencing similar to the federal sentences or the feds would have to massively increase their activity. For a lot of reasons (mostly economic) I doubt the viability of either approach. I just don't know if Virginia could take the economic hit from massive long term incarceration for basic drug dealers (unless, maybe, we stopped sending all those people to prison for driving offenses).2 The feds are impressive when they concentrate their almost unchallengable power in one place but were they to spread their force throughout all jurisdictions in order to hit everyone hard enough to get the idea of federal incarceration in everyone's mind they would probably be too diffuse to accomplish the mission. Of course, the feds could coopt a lot of local law enforcement to do the job for them and then prosecute in federal court but that would be a pretty clear violation of the principles of federalism and we all know that our government wouldn't discard federalism just because it got in the way of the exercise of raw power.3

With all that in mind, the judge's proposals would seem to have merit. While I don't believe they would be as successful in the long term as massively increased penalties, they can be effective. This is the kind of thought that has led to the development of drug courts and programs to help people deal with their mental issues. Are these programs abused? Sure, some try to cheat their way through; nevertheless, the programs offer a far better chance at turning a minor offender back into a beneficial member of society than warehousing him in a prison does.
They are also far more cost effective and less disruptive, at least in the short run.

This is running long and I've got to get some sleep tonight. As always, I remind ya'll that this is an incomplete thought which would probably take a lot longer to flush out completely. Feel free to discuss it among yourselves . . .

1 Please note, I don't actually think the group is an organized entity calculating this way. It is more of an evolved social grouping formed into what it is by its constant interaction with law enforcement and the courts. No one "expects" or wants to go to prison. It is just that jail/prison is not a debilitating thing.

2 Were Virginia to go this route it should also prepare for a more violent future. Dealers who believe they are going to prison for a short time are likely to just go. Those who believe that they are going away for sentences which are often effectively life sentences will fight back. I cannot place my hands on the statistics right now but California's 3 strikes law is supposed to have caused a significant upswing in violence.

3 Yes, that's my tongue you see firmly planted in my cheek. However, in actuality I think there is a lot of local law enforcement going over the heads of local prosecutors, judges and juries and trying to get the feds to take cases because they know how imbalanced the federal system is.

You know that your defense is in desperate straits when the best you have available is that your client only meant to permanently cripple the victim so she could take his money. The death was accidental.

So, I'm sitting in the law library at the courthouse typing away and I get up to take a break. I walk past a table filled with brochures all about the legal rights of Virginians. That's when I noticed the brochure with the illustration above on it.

I have no idea why Justice is sitting there next to an ostrich. If anyone out there has any info it would be appreciated.
[addendum] Ask and ye shall receive. This morning when I checked the e-mail there was a message from Waddling Thunder telling me that he thinks the ostrich is a traditional symbol of justice being blind.

Having never heard that before I did a little research. It turns out that an ostrich feather is the symbol of the ancient Egyptian goddess Ma'at. She was the goddess of truth, justice, and all things of good order in the universe. According to ancient Egyptian theology when one dies the soul is placed on one scale and the ostrich feather is placed on the other in order to see if your soul is too heavy from the wrongs in your life. If it is your soul is demon fodder; if not you get a good afterlife.

During the hearing it was suggested that prior to 1987 a sentence could only be appealed if the sentence violated the constitution. I’ll go on the record as saying that I don’t think that’s right. I recall reading that sentences could be appealed if, for example, the judge relied on false information in the imposition of a sentence. I recall reading this somewhere. Any help would be appreciated.

I wasn't around pre-guidelines but I'll take a hack at this.

I'll assume there was no requirement that a federal judge announce the reasoning for his decision (if someone can point to a requirement otherwise please drop me an e-mail). If so, sentencing would not be much different than it is here in Virginia. So I'll apply some of what I've seen happen in Virginia courts.

If a judge is worried about being overturned upon appeal one of the easiest things he can do is not develop a record. I've seen this in a number of cases where the judge thought that the issue was close. The judge just makes a bald announcement of the finding. Trying to get an elaboration usually ends up with a statement something along the lines of "Mr. Lammers, the facts here speak for themselves and I don't need to add anything to them."

This technique is especially devastating in a sentencing hearing. The prosecution has been standing at the podium for 30 minutes arguing for a stiff sentence based upon reasons which are clearly unconstitutional: "Rather than the five years normally imposed, Mr. Lammers should be sent to prison for the 75 year maximum because he's of German ethnicity, and he's white, and he grew up in Kentucky, and he's a Romanist, and he's male, and he voted Republican in the last election." You've been vigorously objecting but the prosecutor has been getting his point across. After both sides have had their say the judge looks down and simply states, "I impose a sentence of 70 years." He refuses to elaborate. You've got no grounds for appeal because the sentence is within the maximum possible. Appellate courts will uphold that sentence time after time after time.

So, yes technically you would have the right to argue an unconstitutional factor. However, in the real world you might not have a record upon which to base the argument. This is what pops into my mind when people talk about sentences under the maximum being unreviewable.

12 July 2004

Fox v. Commonwealth - Subject: Whether a statute which authorizes an officer to arrest for a misdemeanor with “reasonable belief” that the accused is likely to harm himself or another person is an unconstitutionally subjective test.

The objective test is “whether evidence supports a reasonable belief that the statutory circumstances obtain.” Applying Whren (pretext stops are constitutional because the Federal Supreme Court will not look to the real reason of the stop if the officer can point to the slightest of legal violations noted before the stop), the Court decides that “[w]hether the officer actually believed that the statutory circumstances obtained is immaterial.” Rather, the courts will review the circumstances and decide whether there were objective factors.

[comment] Of course, a plain reading of the statute does not support the Court’s analysis. The statute specifically states “reasonably believed by the arresting officer.” Since statutes are to be strictly construed against the Commonwealth, that very straightforward direction from the Legislature should have decided the issue. The Court could have issued a very simple one paragraph opinion: “Reasonable belief is a belief based upon objective factors. Throwing a pistol with the serial number scratched off away as you run from the police provides a plethora of objective factors supporting this arrest.”

Apparently, the court did not do this because the officer’s testimony contained no discussion of the objective facts supporting the arrest. The Whren analysis applied instead just feels tortured. The basic holding of Whren is that if the officer can state an objectively supported reason the courts will not seek anything deeper (like the real reason). This court turns that into “we look only at the facts and will not even consider the officer’s belief.” Again, this is absolutely not supported by the statute.

The underlying “save the officers from their own stupidity” philosophy also bothers me. As a Defense attorney I can say with almost 98% surety that officers will be able to state the reason for their arrest and back it up with objective factors; if the officer in this case did not the most likely reason is a failure in trial prep or questioning by the prosecutor. Officers do not need to be rescued by the courts; when the courts do it is somewhat insulting and annoys that part of my soul which disfavors elitism.

30 April - Judge departs upward over 11 years from the guidelines
30 April - Defense objection and motion to modify sentence
24 May - Order entered on firearm conviction (not subject of this appeal)
30 May - Judge meets counsel in chambers and denies Defense a formal hearing as well as any opportunity to put his objection on the record in court with Defendant present
31 May - Judge enters Order on the drug count (the subject of this appeal)
31 May - Defense files motions requesting the sentence be set aside and Defendant sentenced according to the guidelines
22 June - Defense counsel comes to judge with an Order memorializing the 30 May in chambers meeting
22 June - Judge suspends imposition of both sentences for a hearing on Defense’s motion
12 July - A hearing is held on the Defendant’s motions
August - Judge enters a final order denying all Defendant’s motions

The petitioner’s first objection (that there was neither a record of the in chambers meeting on 30 May nor a hearing in the presence of the Defendant) is moot because the judge had the hearing on 12 July.

The second objection (that the judge failed to hear the motion in a timely manner and therefore denied Defendant a record to appeal) is denied because Defendant did not file his motion to suspend, modify, or vacate within 21 days of the sentencing orders. Because the 31 May objection did not seek to establish that he was not guilty or eliminate his sentences (instead just asking for modification) it was not a proper filing. As well, the Defendant received his due process in the hearing held 12 July.

[comment] Where to start? The in chambers hearing: Often judges do this because they are trying to be decent people. They invite the lawyers back so everybody can sit and have some coffee while they discuss the case. Sometimes they are trying to save a lawyer embarrassment because they know the argument is bad and they don’t want to yell at him in front of the audience (yes, in Virginia we still have a sense of propriety). Do judges do this sometimes in order to avoid a record? My sense is generally not. Still, rumor has it that the reason the Legislature mandated transcripts for all criminal hearings is that some judges used to tell the reporter to stop recording. I wasn’t there so I don’t have the flavor of the hearing.

I do have a flavor of the appeal. The judge sentenced harshly but lawfully; there is no grounds to appeal the sentence. This is the sort of sentence which catches everybody flat-footed. The client (going to prison for 11 more years than you told him he probably would) is very justifiably upset and Defense counsel stands in shock. You have to appeal, but on what grounds?

Well, first Counsel tries to set a factual basis for the argument that the judge has sentenced in a manner which is entirely disproportionate to the crime and prior sentences for those similarly situated. He is denied this opportunity; he cannot even get it on the record. So he loses his factual basis for the appeal. Then he tries to get the judge to sign off on an agreed statement of what went on in the in chambers meeting so that he can appeal the fact he cannot get the facts on the record.

At this point, the judge decided to have a hearing but sets it after the date upon which Defendant must note his appeal. Defendant gets his evidence in during that hearing. The question is whether it is part of the trial and the appellate court answers “no.”

In general, I agree with the Appellate court, although this whole thing comes across a little fishy. I’ll bet that judge and counsel never meet in chambers again without a reporter. Still, I cannot point a finger at anyone exactly. The judge may have been in error but even if the petitioner won his procedural point it would go back for a hearing wherein the judge would impose the same sentence. Thereafter, it would come up to the appellate courts which would uphold the sentence as being entirely within the trial court’s valid discretion. It was a desperation appeal without much chance of accomplishing anything. Still, when Client says appeal you must appeal if there are any valid theories.

11 July 2004

Warning - This dangerous fugitive is being sought by the Fairfax police for the suspected theft and burying of ceramic lawn uglies. When reached by the press in his secret lair the as yet un-named villian is quoted as saying, "Well, somebody had to do something. After all, ceramic racoons? How gauche."

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Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.